Adverse possession is a way to obtain land by occupying it openly and acting like its owner instead of buying it. The most common situation is one in which one person owns undeveloped land that is occupied for a long period of time by another person without the knowledge of the real owner. However, the occupier of the property must openly occupy it and act as if they own it.
How is Title Different From Possession?
Title refers to legal ownership of property. A person who has title to property usually possesses a deed showing their name as owner. Possession is something different; it refers to physical occupation of property. So, for example, an owner can rent out a house and still retain ownership, while the tenants have a right to occupy the house per the terms of a lease agreement. Or, squatters taking over an abandoned building would give the squatters possession since they occupy the land, but the owner still has legal title and owns it.
What Gives Another Person Rights to My Land / Adverse Possession?
For a person to have adverse possession of a property, the person must:
- Act like the true owner, e.g. maintain the property, pay taxes, and occupy the property;
- Openly act as the true owner of the land;
- Use the property without the consent of the land’s legal owner and pay no rent;
- Maintain this status of open occupation without ownership for a period of time specified by law in the state where the property is located, which is usually 10 to 20 years.
How Long Does The Possessor Have To Occupy The Property?
State law prescribes the period of occupation of the land that qualifies the person who occupies the property to claim ownership by adverse possession:
- In Arizona, it is 2 years;
- In California, Idaho, Montana, and Nevada, it is 5 years;
- In Alaska, Arkansas, Florida, Tennessee, Utah, and Washington, it is 7 years;
- Alabama, Indiana, Louisiana, Mississippi, Missouri, Nebraska, New Mexico, and New York, it is 10 years;
- In Oregon, Rhode Island, South Carolina, Texas, West Virginia, and Wyoming, it is 15 years;
- In Connecticut, the District of Columbia, Kansas, Kentucky, Michigan, Minnesota, Oklahoma, Vermont, and Virginia, it is 18 years;
- In Colorado, it is 20 years;
- In Delaware, Georgia, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Hampshire, North Carolina, North Dakota, South
- Dakota, and Wisconsin, it is 21 years;
- In Ohio and Pennsylvania, it is 21 years;
- In New Jersey, it is 30 years.
What If the Possessor Believed The Property Was His?
Courts in different states view the intent of the possessor differently. Generally, how courts view a possessor’s intent can be broken down into three categories:
- Objective: It does not matter what the possessor believes about the property in states with an objective standard. The possessor might be granted or denied legal title on the basis of the facts of the case, but the possessor’s belief that the property was theirs will not be a factor at all;
- Good Faith: The state with the good faith standard is more likely to give title to the property to a possessor who believes the property is actually his, because, e.g., he has a defective title;
- Bad Faith: A state with a bad faith standard is not likely to give title to the property to a possessor who believes the property is actually his. The state will only award a possessor title if the possessor intentionally set out to deprive the true owner of the property.
Why Would a State Give a Possessor Title If the Possessor Acted In Bad Faith?
The primary reason a state would give a possessor who acted in bad faith (i.e. intentionally trying to take the owner’s property) is to reward a possessor’s labor and their attempts to make productive use of vacant property.
American law has its origins in English common law, which assumes that property unused is property wasted. Thus, giving property to possessors who act in bad faith ensures no property will go unused, i.e. wasted, allowing the community to produce at full capacity.
So I Can Acquire a House For Dirt Cheap With Adverse Possession?
In theory a person can acquire a house for a low investment through adverse possession, but it is challenging in practice. First, adverse possession requires that the person possessing the property use it continuously for a specific, often lengthy, period of time. If the true owner catches the possessor in the act, the possessor could be arrested and fined for criminal trespass.
Banks are the true owners of foreclosed houses, although filling out an adverse possession form can protect a possessor from charges of criminal trespass. However, the true owner can still ask the police to evict the possessor.
Second, adverse possession requires that the occupation of the property by the possessor be open. The possessor has to make it common knowledge that they are openly occupying the property. This might involve putting up “No Trespassing” signs, building fences and paying taxes on the property. However, if the possessor makes the possession obvious, of course, the true owner could be put on notice and take legal action to oust them, e.g. by going to court for an order of eviction.
If It Is So Difficult to Acquire Property Using Adverse Possession Today, Why Keep It?
Courts use the doctrine of adverse possession to settle various property disputes. For example, suppose that two property owners, Bob and Jebediah, share a border on their properties. Bob builds a fence a few inches over the border so that a small portion of Jebediah’s property is on Bob’s side of the fence. Adverse possession could settle this situation if all the elements are satisfied by the facts.
Another situation could arise if their children or the succeeding property owners squabble over the property. For example, suppose that neither Bob nor Jebediah realizes that part of Jebediah’s property is now on Bob’s side of the fence. Instead, Bob’s son, Ken, inherits the property from his father, while Jebediah sells his property to Dave. Adverse possession would settle any dispute between Ken and Barbie even after Bob and Jebediah have exited the scene.
What If The True Owner Gives Permission?
If the true owner gives permission, there is no adverse possession. The owner will retain legal title and thus the true owner can rescind permission at any time.
If The Possessor Takes Property From the True Owner, Does The True Owner Have Any Rights Left?
Once the possessor gains legal title over the property, the possessor becomes the new, true owner. The original owner will not have any rights to his former property. However, in some states, courts will require that an adverse possessor pay money compensation to the original owner as damages for depriving the owner of the property.
Do I Need an Attorney for my Adverse Possession Problem?
The laws dealing with adverse possession can be complex and difficult to understand. An experienced real estate attorney can help determine if your land has been adversely possessed and what legal rights you have. If you have to go to court to establish your ownership of the land, an experienced real estate lawyer can file the necessary paperwork and represent you.